Appeal of TERRI AGEE from actions of the Board of Education of the Wyandanch Union Free School District and Board President, Denise Baines, regarding board practices.

Decision No. 16,157

(September 30, 2010)

Conway, Farrell, Curtin & Kelly, P.C., attorneys for respondents, Heather M. Palmore, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals certain actions of the Board of Education of the Wyandanch Union Free School District (“board”) and its President, Denise Baines (collectively “respondents”).  The appeal must be dismissed.

At a board meeting on January 13, 2010, the board voted four to three to appoint Dr. Pless Dickerson as interim superintendent.  It also voted to grant Dr. Dickerson a leave of absence from his position as assistant superintendent for personnel, curriculum and staff development and to terminate the appointment of Dr. Mary Jones from her position as interim superintendent.  Petitioner alleges that respondents conspired to violate their obligation to serve the best interests of students and to protect taxpayers’ interests by hiring unqualified personnel, engaging in nepotism, and violating Article 18 of the General Municipal Law (“GML”) and board policies governing conflicts of interest and ethics.  Specifically, petitioner contends that the board lacked sufficient votes when it appointed Dr. Dickerson as interim superintendent because a conflict of interest existed between him and the board president.  Therefore, petitioner alleges, five, rather than the four recorded votes, were required for the appointment.  Petitioner also alleges that Dr. Dickerson was appointed by a resolution added to the agenda following an unscheduled executive session about which three board members had no prior knowledge, and without knowledge or input from the public.  She also alleges that the board majority routinely rejects requests for information under the Freedom of Information Law (“FOIL”) upon advice of counsel.

Petitioner requests that the interim superintendent’s appointment be declared null and void and in violation of the GML and board policies governing conflicts of interest (#6110) and anti-nepotism (#1740), and that any contract with him or action by him be null and void.  She also seeks the reinstatement of Dr. Jones as interim superintendent, the removal of the district’s school attorneys as counsel because of their advice concerning FOIL, and the removal of the board’s president for exceeding her authority and violating the GML.  Petitioner also requests that the Commissioner or the State Education Department (“SED”) remove all members of the board who participated in improper acts because of their vote on January 13, 2010.  Petitioner’s request for interim relief was denied on February 4, 2010.

Respondents deny petitioner’s allegations and assert that petitioner has failed to establish a pattern of nepotism or conspiracy, that any conflict of interest existed, or that any violations of board policy or law occurred.  Respondents contend that the appeal must be dismissed for failure to join necessary parties, and, with regard to the FOIL allegations, as untimely.

Petitioner attempts to bring this appeal on behalf of herself, parents, taxpayers and students.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioner’s pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, her request for class status is denied.

A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  The answer in this case was served on January 29, 2010.  Petitioner’s reply, therefore, was due on February 12, 2010.  On February 11, 2010, petitioner requested a two-week extension.  However, she did not serve the reply until March 4, 2010, three weeks later.  Accordingly, I have not considered the belated reply which also impermissibly attempts to raise new allegations (seee.g.Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).

Petitioner’s FOIL-related claims must be dismissed as untimely and for lack of jurisdiction.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  To the extent petitioner challenges advice provided by the district’s counsel regarding release of information under FOIL, it appears that the appeal is untimely in that such advice was provided more than 30 days prior to the commencement of the appeal.  Moreover, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

The balance of the appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner seeks the removal of the board’s president, the removal of other board members who voted to appoint Dr. Dickerson, the removal the district’s counsel, and the reinstatement of Dr. Jones, which would necessitate termination of the appointment of Dr. Dickerson as interim superintendent.  Although petitioner named the board president in the caption of the appeal, she failed to serve her and failed to name or serve any of these other individuals.  Such failure requires dismissal of the appeal.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.